PROBE application (the “Application”) and PROBE website (the “Website”)
IMPORTANT - PLEASE READ CAREFULLY:
This is an Agreement to access and use the myPROBE Application and is a
legally binding agreement between you, McMaster University ("McMaster"),
and the Patient Outcomes Research Group Ltd ("PORG"). By accessing or
using the Application and/or the Website and/or the Materials, together
as defined Materials in section 2.1 below, you are agreeing to the terms
below. You agree to comply with the terms and that the terms control your
relationship with McMaster and PORG. Please read all the terms carefully.
If you use the Application and/or the Materials in conjunction with other
products or services, then the terms for those other products or services
will also apply. If you do not agree to the terms of this Agreement, you
are not authorized to use the Application and must not access and/or use
the Application and/or the Materials in any capacity. Any new features or
tools added to the Application and/or the Website and/or the Materials will
also be subject to the Agreement.
ACCOUNT AND REGISTRATION
You may not use the Materials and may not accept the terms of this
Agreement if you are a person barred from using or accessing an Application
similar to this Application or using or accessing materials and documents
similar to the Materials, under the applicable laws of Canada or other countries
including the country in which you are resident or from which you use the Application
and/or the Materials.
If you are using the Materials on behalf of an entity,
such as a legal dependent, you represent and warrant that
you have authority to do so. All references to "you" in the
Agreement refer to your use of the Materials on behalf of that entity.
Use of the Materials through your credentials is for your
use by you only. You must not make the Materials available
to any other person or entity or allow any other person or
entity to access and/or use the Materials using your credentials.
You acknowledge that PORG owns all right, title and interest in the
copyright and all other intellectual property rights to the PROBE
questionnaire and Application and data generated through use thereof,
that you or anyone else provides. You acknowledge that McMaster owns
all right, title and interest in the copyright and all other
intellectual property rights to the Website, inclusive of Solution,
Deliverables, Documentation, Source Materials and copy of the Personal
and McMaster includes, but is not limited to, any content, materials,
results that are found on or provided by the Website and the Application,
as a result of any data, including but not limited to Personal Data,
that may be provided by you (the "Materials"). McMaster and PORG do
not grant you any ownership interest in the Application, and/or the
Materials and only grant you permission to access and use the
Application and/or the Materials in accordance with the terms of
this Agreement. No rights, title or interest in or to any official
mark, trade-mark, service mark, logo or trade name of McMaster or PORG
is granted to you under this Agreement.
Provided that an Authorized Researcher complies with all the terms and conditions
of this Agreement, McMaster and PORG may grant authorized third parties
(each, an "Authorized Researcher") a non-exclusive, non-transferable,
revocable, license for access and use of those Materials for which there
is an approved research application or written agreement with McMaster or
PORG for personal, non-commercial research purposes only.
You must not:
sell, download, print, distribute, reproduce, recreate (even if such recreation contains variations
or differences), rent, modify, adapt, reverse engineer, translate, make available to anyone other
than you, or otherwise distribute copies of the Application and/or the Materials.
include the Application and/or the Materials as a component of a commercial product or use the Application
and/or the Materials for performing research (whether commercial, or non-commercial, funded or non-funded)
unless there is a duly authorized written agreement with McMaster or PORG
remove or obscure any copyright, trade-mark or other proprietary notices from Application and/or the Materials;
otherwise use the Application and/or the Materials on behalf of any third party, with the exception of any legal dependents;
use the Application and/or the Materials to create, develop, distribute or market any product,
application or service that is competitive to McMaster, PORG
and/ or their affiliates (to be determined at McMaster or PORG in their sole discretion);
defame, abuse, harass, stalk, or threaten others;
transfer the Application and/or the Materials to any ad network, ad exchange, data broker, or other
advertising or monetization-related toolset or to any other service; or
use the Application and/or the Materials in any manner that makes the Application and/or the Materials available to any third party,
in whole or in part, with use of your own credentials.
misuse the Application and/or the materials by knowingly introducing viruses, trojans, worms, logic bombs or other material
which is malicious or technologically harmful.
DISCLAIMER OF WARRANTIES
The Application and the Materials have been developed for McMaster and PORG by Design2Code Inc ("D2C").
McMaster and PORG are providing you the Application and the Materials "as is" with all faults and without
warranty of any kind, either express or implied.
McMaster and PORG expressly disclaim and exclude all warranties and representations expressed or implied, including
but not limited to, any implied warranties that the Application or the Materials are merchantable, accurate or fit
for a particular purpose. McMaster and PORG does not warrant that the Application or the Materials will meet your
requirements or that the access and/or use of the Application and the Materials will produce a desired result,
or that the Application or the Materials will operate uninterrupted, or error free or that any defects in the
Application or the Materials will be corrected. McMaster and PORG do not warrant that the use of the Application
or the Materials will not infringe any patent, copyright or trade-mark or other rights.
ASSUMPTION OF RISK
You assume all risk and responsibility for the selection, installation, use, quality, performance and
results obtained from the Application and the Materials.
McMaster and PORG cannot guarantee the continued availability of the Application and/or the Materials
and may cease providing the Application and/or the Materials, if for example and without limitation,
McMaster and PORG are unable to host the Application and/or the Materials on McMaster servers, in a
manner acceptable to McMaster and PORG or the business model changes for the use and access of the
Application and/or the Materials. Should McMaster and PORG cease providing the Application and/or the Materials,
you agree and acknowledge that your access and use may stop immediately, without any forewarning or any notification
While McMaster and PORG make every effort to check and test material at all stages of production,
McMaster and PORG are not able to guarantee that the Application and/or Materials will never be faulty,
free of viruses and/or errors, nor that they will work continuously, nor that they will be maintained in a
fully operational condition. It is always wise for you to run an anti-virus program on all material
downloaded from the internet. McMaster and PORG cannot and do not accept any liability for any loss,
disruption or damage to your data or your system, which may occur whilst you are using the Application
and/or Materials. Users must not misuse the Application by knowingly introducing viruses, trojans, worms,
logic bombs or other material that is malicious or technologically harmful. Application and/or Materials
users must not attempt to gain unauthorized access to the Application, the server on which the Application
and/or Materials are stored, or any server, computer or database connected to the Application and/or
Materials. Users must not attack our site via a denial-of-service attack or a distributed denial-of service
attack. If you breach this provision, you will have committed a criminal offence under Ontario and other
applicable law. McMaster or PORG will report any such breach to the relevant law enforcement authorities
and will co-operate with those authorities by disclosing the Application user’s identity to them. In the
event of such a breach, the Application user’s right to use the Application will cease immediately.
By using the Application and/or the Materials you agree that we can collect and
LIMITATION OF LIABILITY
In no event will McMaster or PORG be liable to you or any other person for any damages of any kind,
including without limitation lost profits, data, business interruption or special, incidental or
consequential damages, in any way arising out of or in connection with the use or performance of
the Application or the Materials, even if McMaster or PORG has been advised of the possibility of
McMaster and PORG do not accept any responsibility for your use of the Application and/or the Materials,
nor for any reliance which you may place on any information given in connection or derived from the
Application and/or the Materials.
In consideration for the benefit obtained under this Agreement, you indemnify McMaster and PORG,
and every other employee and student of McMaster and PORG (the "Indemnified Parties"), and keep
them fully and effectively indemnified, against each and every claim made against any of the Indemnified
Parties as a result of your use of the Application and/or the Materials, works or information received
from them pursuant to the terms of this Agreement. The liability of McMaster for any breach of this
Agreement, any negligence or arising in any other way out of the subject matter of this Agreement, the
Application and/or the Materials, or use of Personal Data, will not extend to any indirect damages or
losses, or any loss of profits, loss of revenue, loss of data, loss of contracts or opportunity, whether
direct or indirect, even if McMaster has been advised of the possibility of those losses, or if they were
within your contemplation.
THIRD PARTY RIGHTS
The Application and/or the Materials use on your personal device may be dependent on programs, operating systems or other
intellectual property of third parties which may require third party Agreements. Compliance to terms and payment of fees
associated with these third-party Agreements are the sole responsibility of you and are not included in this Agreement.
During the term of this Agreement, McMaster or PORG (or D2C) will provide any technical support or assistance to you
in relation to the installation, use or access of the Application and/or the Materials. If you require assistance,
please contact firstname.lastname@example.org.
ACKNOWLEDGMENT OF MCMASTER AND PORG
McMaster and PORG grant you the right to reference the Application or the Materials in any publication you author
(including, electronic documents) however you must include appropriate acknowledgment of McMaster and PORG.
You agree and acknowledge that you will not make any statement regarding your use of the Application, and/or
the Materials which suggests partnership with, sponsorship by, or endorsement by McMaster or PORG without McMaster
and PORG's prior written approval.
TERM AND TERMINATION
This Agreement commences on the date that you are provided access to the Application and the Materials through the Application
registration and continues in effect unless it is terminated earlier by McMaster or PORG. It may be terminated by McMaster or PORG
immediately without notice if you fail to comply with any of the terms and conditions of this Agreement. Upon termination of this Agreement,
your rights to use you terminate and you must immediately stop using the Application and the Materials, uninstall all copies of the Application
and the Materials and any user documentation in your possession or control.
REPRESENTATION OF AUTHORITY
You represent and warrant that you possess the legal authority to enter into this Agreement and that you will be responsible for your
access and/or use of the Application and the Materials. You are responsible for supplying any hardware (e.g. mobile device) or software
(e.g. device OS) necessary to access and/or use the Application.
You must not assign, sublicense or otherwise transfer this Agreement or any rights granted by this Agreement without the prior
written consent of McMaster and PORG and any attempt to do so without the consent of McMaster and PORG will be void.
Neither party to this Agreement will be liable for delay or failure to perform their respective obligations this Agreement if such
delay or failure arises from any cause beyond the reasonable control of the party ("Force Majeure") provided such party gives the
other party written notice of the Force Majeure. Force Majeure includes, without limitation: labour disputes, strikes, other labour
or industrial disturbances and any act of God, fire, natural disaster, power failures, accidents, act of government, shortages of
materials or supplies and failure of contractors to perform. If a party is temporarily excused from performing its obligations under
this Agreement because of Force Majeure, it must promptly resume performance when such Force Majeure is cured or removed.
This Agreement contains the entire agreement between you and McMaster and PORG relating to the Application and
the Materials, and supersedes any prior understandings, arrangements, commitments, communications or agreements,
oral or written, between you, McMaster, and PORG with respect to the Application. McMaster and PORG reserves the
right to make changes to this Agreement without prior notice, provided that McMaster and/or PORG will publicly
post any such changes and your continued use of the Application and/or Materials shall constitute your agreement
to any such changes.
If any provision of this Agreement becomes void, invalid, illegal or unenforceable, the remaining provisions
will not be affected and will continue in effect as though the unenforceable provision(s) were deleted.
If either party omits or delays to require the other party to punctually fulfill any of its obligations under this
Agreement, this omission or delay will not operate as a waiver by that party of its rights under this Agreement.
Sections 2-9 and 12-13 shall survive the termination of this Agreement.
This Agreement will be interpreted in accordance with the laws of the Province of Ontario and the laws of Canada.
Any suit, action, or proceeding arising out of or relating to this Agreement must be brought in Ontario, Canada
and you submit to the exclusive jurisdiction of the Courts of Ontario and the Courts of Canada as applicable.
Use of the Application is prohibited in any jurisdiction which does not give effect to the terms of this Agreement.